Executor misconduct

In some situations, yes - like if fraud has taken place. In a civil (non-criminal) case, an executor can be sued if they’ve breached their duties or withheld inheritance money, and be held personally liable for misappropriated funds and compensation.

You may need to start your claim within six months of the grant of representation being issued. If you are unsure or being “talked out” of making a claim, seeking legal advice as quickly as possible means you aren’t prevented from making a potentially valuable claim within the valid timeframe.

If your case can be settled through negotiation, you will likely only have to pay solicitors’ fees (ours are here). We can support you through the mediation process. If you can’t and have to go to court, the court will decide how costs will be paid.

Disputes that reach court do carry a heavy cost risk for the accused executor. In one case (Re Shotton, 2022), an executor was even given a custodial sentence for failing to comply with an order to provide a sworn statement of assets and liabilities.

We recommend thinking about:

• Who is prepared to handle any family dynamics or potential disputes
• Whether they’re likely to be fit and well enough to administer the estate after the testator’s death
• Whether they are generally trustworthy and competent – or if they have any criminal or bankruptcy history
• Whether a professional might be more suitable (like a solicitor – usually meaning additional charges for the estate)
• Whether the executor will also be a beneficiary (in other words, are they happy to spend time and effort administering the estate if they’re not inheriting?).

We are always available for a consultation or introductory meeting if you would like more direct help.

A beneficiary (someone inheriting from the estate) might have a claim for executor misconduct if they suspect the executor has:

• Charged inflated executor’s fees
• Failed to pay legacies to the beneficiaries
• Sold an estate property at a reduced value
• Failed to give information to the beneficiaries
• Paid beneficiaries before settling the estate’s debts
• Refused to sign paperwork or collect in estate assets
• Caused unexplained delays in administering the estate
• Moved themselves or someone else into an estate property
• Failed to insure an estate property which causes a loss (devastavit)
• Failed to act neutrally, by favouring themselves (self-dealing) or a particular beneficiary.

You would usually start by making a request for information directly to the executor.

You can ask what assets the estate is made up of, and when distribution is likely to happen – advisably by email, so you have a record.

If they don’t respond, you can apply to the court for an order to make them answer your questions. And if they still don’t comply, you can apply to have the executor removed from their position, and replaced with someone else.

The court will normally only remove an executor if:

• There’s a conflict of interest
• The executor has committed a crime since being appointed
• The executor is unsuitable for the position (i.e. has mismanaged it)
• The executor has a mental or physical disability or illness that stops them from carrying out their duties properly.

The executor can give up their position voluntarily, but only before the grant of representation has been issued, and before they have any dealings with the estate.

The best way to understand your chances is to seek early legal advice from a specialist contentious probate lawyer.

With the largest team of wills, trust, and estate dispute solicitors in the UK, and as members of:

• Society of Trust and Estate Practitioners (STEP)
• Association of Contentious Trust and Probate Specialists (ACTAPS)
• Contentious Trusts Association (ConTrA)
• Chartered Institute of Legal Executives (CILEX)

We can give you our continually expanding knowledge and the best chance at your ideal outcome – as well as a sympathetic ear in what can be a hugely upsetting time.